Cutting-Edge Wills

When you think of writing a will, it is unlikely that what comes to mind are issues about cutting-edge technology, but that is exactly what some practitioners are now thinking about. Wills and probate, like any area of the law, must try to keep moving with the times. Changes in how society uses technology mean that lawyers need to be aware of new issues that affect how wills are prepared and what matters they should cover.

First, we will consider the current rules on preparing a will. You may recall from the Diploma course that the formalities for preparing a will have not changed substantiality since the Wills Act 1837. This is not the oldest statute still in use, but given how long it has been in place, isn’t it high time we have more up-to-date and user-friendly legislation?

Will drafting

Section 9 of the Wills Act 1837 sets out three formalities required for a will to be valid under English law: it must be in writing; signed by the testator; and signed by two witnesses at the same time. Over the years the law has shown some flexibility in the requirement for the will to be in writing. Wills written on the back of a door in chalk, on a postage stamp, on the side of a tractor and even on an empty ostrich eggshell (in the case of an American steamboat captain in 1954) have all been allowed. Of course, we would not recommend any of these options, but a will is valid provided it is properly signed and witnessed.

Now if the law is this flexible, why is it still the case that a video by the deceased, no matter how carefully prepared and ‘witnessed’, has no effect? It was questions like this that in 1980 inspired the Law Reform Committee to prepare a report looking into the making and preparation of wills. In that review it was generally expressed that the formalities or ceremony of making a will by signing it in front of two witnesses not only frustrated the possibility of forgery but also helped to ensure that a testator did not come under any undue influence. Given the leaps in technology since 1980, however, it could be argued that both these findings should be reconsidered.

Perhaps a better reason for not allowing the process of making a will to become overly informal is to discourage testators from acting with too much haste. Most mobile phones will allow you to make a video of yourself. Should a video recorded after a night out on the town have legal validity? What about a telephone message or an email from an account only the deceased should have had access to? The problem with trying to introduce rules that cover a particular form of technology is that you then have to consider all the other ways a testator could record him or herself.

The findings in 1980 were that there was little evidence that a major change was required. Less than 0.25% of wills at that time were rejected by the Probate Registry, and most of those were homemade. I suspect that the figures would be similar today. Perhaps on the issue of replacing the Wills Act, it is a case of ‘if it’s not broke, don’t fix it’?

Even if the formalities of making a will are retained, that is not to say some changes to the early Victorian legislation should not considered. For example, the blanket ban on gifts to witnesses could be modified to create a rebuttal assumption that a witness cannot take a gift under a will. This would allow partners or spouses who mistakenly witness their significant other’s will the chance to ask the court to recognise any gifts they may have been left. What about the requirement that both witnesses be present at the same time? Could this rule be relaxed, or could the requirement even be reduced to one witness? If the law were to be changed, it might also be an opportunity to collect in one place all the related legislation. Finally, could the introduction of an Inheritance Act not only make the law more straightforward but also raise public awareness about the importance of making a will?

The new digital inheritance?

As we suggested at the beginning of this article, it is not only how wills are prepared that is on practitioners’ minds, but what needs to be included in someone’s will. If you use digital photographs, emails, digital music and films, what happens to this information once you are deceased? If you have not made plans for who should (or should not) have access to this information, then those left behind will have to rely on any given company’s policy. Some email providers will supply the deceased’s password on receipt of a death certificate, but this is not a guarantee. Social sites such as Facebook will ‘freeze’ your page in time; Flickr, on the other hand, refuses all access to an account.

While more solicitors are bringing up the issue of digital assets when advising clients about their will, I expect it is something that few clients have even considered. If you keep your life organised digitally, and perhaps even receive paperless bills or bank statements, those left behind could face bigger problems than just difficulty in accessing assets of a sentimental nature; they may struggle to discover what financial assets you had.

The solution to some of these problems may be as simple as keeping a list of your passwords, but you will have to balance the risk of this information falling into the wrong hands. Perhaps a schedule attached to your will would give your executors access to this information in the event of your death while giving you peace of mind that the information is safe. As law firms take digital legacies more seriously, you can show that you truly have a “cutting edge” appreciation of current wills and probate issues.